DePaul Law Review DePaul Law Review

Volume 23 Issue 3 Spring 1974 Article 15

Civil Commitment of the Mentally Ill: Lessard v. Schmidt Civil Commitment of the Mentally Ill: Lessard v. Schmidt

Arnold H. Landis

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Recommended Citation Recommended Citation Arnold H. Landis, Civil Commitment of the Mentally Ill: Lessard v. Schmidt , 23 DePaul L. Rev. 1276 (1974) Available at: https://via.library.depaul.edu/law-review/vol23/iss3/15

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CIVIL COMMITMENT OF THE MENTALLY ILL:

LESSARD v. SCHMIDT

On October 29, 1971, Miss Alberta Lessard was picked up in frontof her residence in West Allis, Wisconsin, by two police officers and takento a mental health center in Milwaukee, where she was detained on anemergency basis. Three days later, without a preliminary hearing onprobable cause for detention, a judge of the Milwaukee County Courtissued an order permitting the confinement of Miss Lessard for an addi-tional ten days. On November 4, a Doctor Currier formally stated tothe county court judge that Miss Lessard was a schizophrenic and recom-mended that she be permanently committed. The judge ordered an ex-amination by two physicians and entered a second ten day detention or-der, which was extended again on November 12. Throughout this initialseries of hearings, neither Miss Lessard nor anyone who might act on herbehalf was informed of the proceedings.

Through her own initiative, Miss Lessard retained counsel through Mil-waukee Legal Services. She was given less than 24 hours notice of aNovember 16 commitment hearing, which had to be reset for November26 to allow her attorney an opportunity to appear. Her request to gohome during this ten day period was denied without reason. She wasgiven no notice of the names of persons who would testify against her,of her right to a jury trial, nor the basis upon which her continued deten-tion would be sought. At the commitment hearing, the judge orderedMiss Lessard committed for 30 additional days giving no reason otherthan his finding that she was mentally ill. He made no findings on theissue of dangerousness, despite the fact that the evidence of her attemptedsuicide 26 days earlier was of a hearsay nature and the fact that a staffpsychiatrist at the mental hospital testified that, in his opinion, she pres-ently had no suicidal tendencies. The judge refused to consider any alter-natives less restrictive than commitment and did not disclose the standardof proof, if any, which was used to decide the issues.

Three days following her commitment, hospital authorities permittedher to go home on an out-patient parole basis. However, successive 30day commitment orders were issued for nearly one year, thereby main-taining the involuntarily committed status of Miss Lessard.

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Miss Lessard initiated a class action on 'behalf of herself and all persons18 years of age and older who were being held involuntarily pursuantto any provision of Wisconsin's involuntary commitment statute.' Juris-

diction was claimed under 42 U.S.C. § 19832 and a three judge courtwas requested pursuant to 28 U.S.C. § 2281, and 'allowed in view of thesubstantial constitutional claims raised by the pleadings. The complaint

sought declaratory and injunctive relief against enforcement of certainprovisions of Wisconsin's statutes relating to the procedure for commit-ment of mentally ill persons and an injunction against the further deten-tion of Miss Lessard. In finding for the plaintiff, the Federal District

Court for the Eastern District of Wisconsin found several of the proce-dures authorized by the Wisconsin statute to be constitutionally defectiveand also strictly limited the power of the state to involuntarily commitboth dangerous and non-dangerous mentally ill persons. The courtgranted the requested injunction 'as to Miss Lessard and ordered releaseor rehearing of all members of the plaintiff class who were committedpursuant to the defective procedures noted in the opinion. Lessard v.

Schmidt.8

Lessard is significant in at least two respects: (1) it strictly limits state

power to commit certain classes of mentally ill persons, and (2) it makesapplicable to the involuntary commitment process, as a matter of consti-

tutional right, several -procedural safeguards which apply to the trial of

criminal defendants. In addition, the court makes clear at the outset of

its opinion that, in order to resolve plaintiffs' claims, an analysis of the

justifications which underlie civil commitment theory and procedure is re-

quired. The resulting broad scope of the opinion is a rarity among casesin the mental health field.

In evaluating the effect of Lessard upon the problem of protecting therights of alleged mentally ill persons subject to involuntary commitment,this note will examine the extent of state commitment powers and con-

sider the procedural limitations which have been imposed on the commit-

1. WIS. STAT. ANN. §§ 51.001 et seq. (Supp. 1969).2. 42 U.S.C. § 1983 (1970) provides:

Every person who, under color of any statute, ordinance, regulation, cus-tom, or usage, of any State or Territory, subjects, or causes to be subjected,any citizen of the United States or other person within the jurisdictionthereof to the deprivation of any rights, privileges, or immunities securedby the Constitution and laws, shall be liable to the party injured in anaction at law, suit in equity, or other proper proceeding for redress.

3. 349 F. Supp. 1078 (E.D. Wis. 1972), vacated and remanded, 42 U.S.L.W.3402 (U.S. Jan. 15, 1974) [hereinafter cited as Lessard]. The actual entry of anorder granting injunctive relief did not occur until about nine months after the opin-ion, which indicated that plaintiffs were entitled to an injunction, was filed.

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ment process by statute and case law. Following this will be an analysisof the holdings of the court in Lessard. In order to provide a properframework for the subsequent discussions, the following section willbriefly define the two key concepts.

I. DEFINITIONS

A. What is Mental Illness?

The Draft Act for the Hospitalization of the Mentally Ill, upon whichseveral state statutes are based, defines a mentally ill individual as "anindividual having a psychiatric or other disease which substantially im-pairs his mental health."' 4 The Wisconsin statute involved in Lessard de-fined mental illness as "mental disease to such an extent that a per-son so afflicted requires care and treatment for his own welfare, or thewelfare of others or of the community."5 Clearly, neither definition pro-vides much in the way of standards to guide the individual who is empow-ered to enforce commitment laws, nor a sound basis for the use of a re-laxed set of due process rights.

Since hospitalization involves the loss of an individual's liberty andmany additional civil rights,6 the alleged mentally ill person should beentitled to a clear standard which justifies commitment. Unfortunately,the prospects for such a standard are poor. Mental illness has been de-scribed as '"a global medical concept with as imprecise a definition as'physical illness.' ' '7 The medical profession is in no sense in agreementabout which illnesses are properly includable within this category. Theproblems involved with basing a commitment scheme on a medicalterm upon which the medical profession cannot agree was discussed byBurger (the present Chief Justice) concurring in Blocker v. UnitedStates:8

[N]o rule of law can possibly be sound or workable which is dependentupon the terms of another discipline whose members are in profound dis-agreement about what those terms mean . . . . This is not simply a matterof experts disagreeing on opinions or on diagnosis, which often occurs, butdisagreement at the threshold on what their own critical terms mean.9

4. NATIONAL INSTITUTE OF MENTAL HEALTH, FEDERAL SECURITY AGENCY, ADRAFT ACT GovERNING HOSPITALIZATION OF THE MENTALLY ILL § 1(a) (PublicHealth Service Pub. No. 51, 1951).

5. Wis. STAT. ANN. § 51.001 and § 51.75 (Art. 1(f)) (Supp. 1973).6. See note 81 infra and accompanying text.7. S. BRAKEL AND R. ROCK, THE MENTALLY DISABLED AND THE LAW 60 (rev.

ed. 1971) [hereinafter cited as BRAKEL AND ROCK].8. 288 F.2d 853 (D.C. Cir. 1961).9. Id. at 860.

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While some authors dispute the existence of mental illness or the needfor civil commitment laws, 10 it seems that the general social view recog-nizes that there does exist some forms of mental disease with which thelaw may properly deal in the form of commitment laws. Efforts to refinethe current legal definitions of mental illness should continue. However,the current need to protect the rights of those who should not be subjectto commitment can be satisfied by employing more strict standards in ap-plying the additional criteria which are used to base a commitment deci-sion" and by adopting strict procedural safeguards in the commitmentprocess.

B. What is Involuntary Commitment?

The phrase "involuntary commitment," or the more modem term "in-voluntary hospitalization," describes the removal of a person judged tobe mentally ill from his normal surroundings to a hospital authorized todetain him. 12 It is wise to consider that the term should be construedto include not only those relatively few situations in which the patientactively opposes commitment,' 3 but also those in which the patient standsmute at a commitment proceeding and fails to raise any objection. Usedin this inclusive sense, a proper evaluation of both commitment standardsand procedures can be made in determining the propriety of state actionand the adequacy of safeguards provided.

II. SOURCE AND EXTENT OF STATE COMMITMENT POWERS

As a general proposition, state statutes authorize the commitment ofa mentally ill individual based upon one or more of the following criteria:(1) to protect the public against acts of violence ("dangerous to others");(2) to protect the individual from self-inflicted injury or peril ("danger-ous to self"); and/or (3) to provide therapeutic measures in order to al-leviate the individual's condition ("in need of treatment").' 4

10. See, e.g., N. KITTRIE, THE RIGHT TO BE DIFFERENT: DEVIANCE AND EN-FORCED THERAPY (1971); T. SzAsz, LAw, LIBERTY AND PSYCHIATRY (1963);Szasz, The Sane Slave: Social Control and Legal Psychiatry, 10 AM. CIM. L. REV.337 (1972). The question of whether or not the state should be involved at allin the enforced treatment of certain categories of individuals is beyond the scopeof this note.

11. See note 14 infra and accompanying text.

12. BRAKEL AND ROCK, supra note 7, at 35.13. Curran, Hospitalization of the Mentally Ill, 31 N.C.L. REV. 274, 279

(1953). See also R. ROCK, M. JACOBSON, & R. JANOPAUL, HOSPrALIZATION ANDDISCHARGE OF THE MENTALLY ILL 155-57 (1968).

14. See BRAKEL AND ROCK, supra note 7, at 72-79 for a comprehensive listingof each state's statutory criteria for involuntary commitment.

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The power of the state to commit mentally ill persons who fall withinone or more of the above criteria is based upon the police power andthe doctrine of parens patriae. Under the police power, the state mayconfine a mentally ill person who presents a danger to other membersof society. In the parens patriae capacity, the state has the right andthe duty to protect the person and property of those who, due to mentalillness or minority, are unable to care for themselves. It is by virtue ofthe parens patriae power that the state is empowered to commit amentally ill individual who presents a danger to himself or is consideredto be in need of treatment. 15 Where employed, the doctrine of parenspatriae has been used to justify a less comprehensive set of proceduraldue process rights than is required in criminal adjudications. The basicjustification for this state of affairs is the belief that a formal adjudicatoryhearing in which full due process rights are provided is not requiredwhere the state is proceeding for -the benefit of the individual involved.Potential benefit to the individual is also employed as a justification forcommitment without traditional due process rights when the state seekscommitment under the police power. In addition, the view that society'srules cannot deter -the violent mentally ill is also used to support commit-ments under the police power without traditional due process safeguards.

The departure from the common law requirement of dangerousness toothers came about in America in the mid-19th century. Up until thattime, 'the basic purpose of confinement of the mentally ill was detentionand not therapy. However, as the mentally ill came to be recognizedas sick rather than cursed and as the community came to accept greaterresponsibility for the care of its disadvantaged members, considerationsother than community self-protection were employed to justify commit-ment.' 6 The courts reflected this change in view by allowing commit-ments based upon state parens patriae powers. In the seminal case ofIn re Josiah Oakes,17 Chief Justice Shaw of the Massachusetts SupremeCourt upheld the detention of a non-violent individual who alleged wrong-ful detention. In so doing, Chief Justice Shaw found that dangerousnessto self, in addition to the more familiar dangerousness to others standard,would suffice as a proper basis for detention.' 8

The justification for commitment based upon dangerousness to self is

15. Ross, Commitment of the Mentally Ill: Problems of Law and Policy, 57MICH. L. REV. 945, 955-57 (1959).

16. See BRAKEL AND ROCK, supra note 7, at 4-7; Comment, Civil Commitmentof the Mentally Ill: Theories and Procedures, 79 HAv. L. REV. 1288 (1966).

17. 8 LAw REP. 123 (Mass. 1845), discussed in Hallett v. Oakes, 55 Mass. 296,1 Cush. 296 (1848).

18. Id. at 125.

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that the state, as parens patriae, may proceed to protect the interests ofthe individual involved. Under English law, parens patriae had beenused as a source of power over the person and goods of certain mentallyill individuals for centuries. Under the English practice, commitment wasallowed for persons deemed incompetent but it worked no deprivation ofproperty and civil rights during lucid moments. The American practice,on the other hand, generally resulted in total and perhaps permanent lossof liberty.19

The use of parens patriae as a source of substantive power over men-tally ill individuals may be viewed as motivated by humanitarian con-cerns. Its use, however, brought within state power a new class of indi-viduals. This new class of potential committees were subject to unjusti-fied commitments for two important reasons. The first of these was thefailure of the courts to require strict standards of dangerousness. 20 Thesecond was the belief that when the state sought to deprive an individualof his liberty to treat rather than to punish, traditional due process rightswere considered unnecessary.

III. PROCEDURAL SAFEGUARDS

This section will examine the principal arguments which are used tolimit the extent to which procedural rights should be required in civil com-mitment proceedings and survey certain basic procedural safeguardswhich 'have been imposed on the commitment process in the several statesby statute and case law.

A. Principal Arguments

Whether or not an alleged mentally ill person should be entitled to theprocedural safeguards to which a criminal defendant is entitled has beenthe subject of extensive controversy. Courts,21 commentators,22 and psy-

19. 349 F. Supp. at 1085.20. See, e.g., United States v. Charnizon, 232 A.2d 586 (D.C. Ct. App. 1967)

in which the probability that the accused would issue checks drawn on insufficientfunds was held to fall within the statutory test of mental illness characterized bydangerousness to others. See also Dodd v. Hughes, 81 Nev. 43, 398 P.2d 540(1965) in which recidivism and a failure to respond to conventional penal and re-habilitative techniques were held to satisfy a "mentally ill and dangerous" commit-ment standard.

21. See, e.g., In re Coates, 9 N.Y.2d 242, 173 N.E.2d 797, 213 N.Y.S.2d 74,appeal dismissed sub nom. Coates v. Walters, 368 U.S. 34 (1961) (initial hospitali-zation and later indefinite extension without notice conformed to due process wherepatient retained the right to seek judicial review).

22. See, e.g., M. GUTTMACHER & H. WEIHOFEN, PSYCHIATRY AND THE LAW 295(1952):

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chiatrists23 have advanced the proposition that it is not only acceptable,but desirable that alleged mentally ill persons receive less than the tradi-tional due process safeguards afforded criminal defendants. Two justi-fications which have been advanced in support of this proposition are thatthe proceeding is civil rather than criminal and that the purpose of thecommitment is not punishment but rehabilitation. 24 Neither reason sup-ports the proposition asserted.

Several recent cases lend strong support to the view that the civil-crim-inal distinction is an untenable premise upon which to base a relaxationof traditional due process standards in commitment proceedings.

In re Gault25 involved the commitment of an alleged juvenile delin-quent pursuant to juvenile court proceedings which have traditionallybeen classified as "civil." Notwithstanding this label, the Court held thatthe privilege against self-incrimination, which by the express words of thefifth amendment is applicable only to a "criminal case," is available insuch a proceeding because "commitment is a deprivation of liberty. Itis incarceration against one's will whether it is called 'criminal' or 'civil'. 2 60

Heryford v. Parker27 applied an approach similar to that used in Gaultin a habeas corpus proceeding brought by the mother of a mentally re-tarded son who had been committed to a state institution for the feeble-minded and epileptic. The mother alleged that the state had failed tomeet the requirements of due process at least in part due to a failureto provide counsel at the commitment proceeding. Chief Judge Murrah,speaking for the tenth circuit, agreed:

[L]ike Gault, and of utmost importance, we have a situation in which theliberty of an individual is at stake, and we think the reasoning in Gaultemphatically applies. It matters not whether the proceedings be labeled,civil' or 'criminal' or whether the subject matter be mental instability orjuvenile delinquency. It is the likelihood of involuntary incarceration-

[Wihere the person is mentally incapable of understanding the nature ofthe proceedings or preparing therefor, or is so deranged that notice woulddo him harm, the purpose of protecting his interest can be more effectivelyaccomplished in some other way than by serving him with legal papers.

23. GROUP FOR THE ADVANCEMENT OF PSYCHIATRY, COMMITMENT PROCEDURES

2 (Rep. No. 4, April, 1948).24. See Ennis, Civil Liberties and Mental Illness, 7 CRIM. LAW BULL. 101, 109

(1971). Ennis also notes-and dispells-two additional justifications: the poten-tially traumatic effect of a formal proceeding and the stigma which may result there-from. Id. at 109-10.

25. 387 U.S. 1 (1967) [hereinafter cited as Gault].26. Id. at 50. The Supreme Court has also ignored the formalistic distinctions

between civil and criminal proceedings in Baxstrom v. Herold, 383 U.S. 107 (1966)and Specht v. Patterson, 386 U.S. 605 (1967).

27. 396 F.2d 393 (10th Cir. 1968) [hereinafter cited as Heryford],

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whether for punishment as an adult for a crime, rehabilitation as a juvenilefor delinquency, or treatment and training as a feeble-minded or mentalincompetent-which commands observance of the constitutional safeguardsof due process.

2 8

Taken together, these decisions appear to indicate that the traditionaldue process safeguards which apply in the trial of a criminal defendantshould equally apply in a civil commitment proceeding, or in any otherproceeding in which an individual is threatened with deprivation of lib-erty.

The notion that commitment pursuant to relaxed due process standardsis justified due to the therapeutic rather than punitive purpose of the sub-sequent commitment is likewise unsupportable. In discussing the issuein the context of juvenile courts, the Supreme Court noted:

While there can be no doubt of the original laudable purpose of juvenilecourts, studies and critiques in recent years raise serious questions as towhether actual performance measures well enough against theoretical pur-pose to make tolerable the immunity of the process from the reach of con-stitutional guaranties applicable to adults .... There is evidence, infact, that there may be grounds for concern that the child receives theworst of both worlds: that he gets neither the protections accorded toadults nor the solicitous care and regenerative treatment postulated forchildren.

2 9

There can be little doubt that civil commitment of an adjudged mentallyill individual similarly fails to provide the care and treatment upon whichcommitment pursuant to relaxed due process standards is designed torest.30

But what if the rehabilitative purpose of the commitment is raised tothe level of an enforceable right? That is, may lesser procedural safe-guards be allowed in a commitment proceeding than in a criminal trialwhere the potential committee has a constitutional right to treatment fol-

28. Id. at 396.29. Kent v. United States, 383 U.S. 541, 555-56 (1966) (emphasis added).30. State mental institutions are typically overcrowded and understaffed, serving

a caretaking rather than a therapeutic function for most of their inmates. In 1965,the median number of patients per physician employed by public mental hospitalswas 102. NATIONAL INSTITUTE OF MENTAL HEALTH, PATIENTS IN MENTAL INSTITU-TIONS, 1965 (1967). Twenty to thirty patients would constitute a relatively heavycase load if individual psychiatric therapy were actually provided. Reibman, Rightsof Mental Patients to Treatment and Remuneration for Institutional Work PendingMental Health Legislation, 39 PA. B. ASS'N Q. (1968). In 1961, a Senate committeewas told that half the patients in state mental hospitals receive no treatment andthat "in most public mental hospitals the average ward patient comes into person-to-person contact with a physician about 15 minutes every month...." Hearingson Constitutional Rights of the Mentally Ill Before the Subcomm. on ConstitutionalRights of the Senate Comm. on the Judiciary, 87th Cong., Ist Sess., pt. I, at 43-44, 103 (1961).

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lowing civil commitment?," This question should be answered in the neg-ative. The courts should not allow the constitutionally based right totreatment to bolster an argument which is designed to maintain constitu-tionally defective procedures. The right to treatment following civil com-mitment has received less than universal judicial acceptance. 2 In addi-tion, several difficulties attend enforcement of this right where it is recog-nized.83 But more importantly, even if there was a nationally recognizedand enforcable right to treatment, full procedural rights should be re-quired to insure that "treatment" is not allowed for persons who do notdesire it, cannot benefit from it, or may be 'harmed by it.3 4

One additional point with respect -to the "purpose" argument deservespresent note. When a mentally ill individual is committed on the basisof a dangerous to others standard, his confinement, in a sense, is similarto criminal confinement in that in 'both cases the state decides that societyat large will benefit from the deprivation of the individual's liberty.83 Tothe extent that such confinement of a mentally ill individual serves a tra-ditional criminal purpose, then, on this basis alone, it should be attendedby traditional criminal safeguards.36

It seems clear from the above, then, that even if the purpose and ef-fect of commitment is rehabilatative rather than punitive, that this doesnot constitutionally justify the use of any fewer due process rights thanare required in a criminal trial.

31. A constitutional right to treatment was first recognized by a federal courtin Wyatt v. Stickney, 325 F. Supp. 781, 784 (M.D. Ala. 1971).

32. "This Court respectfully disagrees with the conclusion reached by [the courtin Wyatt v. Stickney] in finding an affirmative federal right to treatment absenta statute so requiring." Burnham v. Dept. of Pub. Health, 349 F. Supp. 1335, 1340(N.D. Ga. 1972).

33. See, e.g., Wyatt v. Stickney, 334 F. Supp. 1341 (M.D. Ala. 1971); Liver-more, Malmquist and Meehl, On the Justification for Civil Commitment, 117 U.PA. L. REV. 75, 93 n.53 (1968) [hereinafter cited as Livermore]; Drake, En-forcing the Right to Treatment: Wyatt v. Stickney, 10 AMER. ClUM. L. REV. 587(1972).

34. State enforced treatment of an individual against his will raises the specterof enforced state behavioral norms. See, e.g., KITTRIE, supra note 10, at 45-49 and386-94. Second, certain types of mental illnesses are presently untreatable. See,e.g., Livermore, supra note 33, at 93. Confining an individual with such a diseaseis tantamount to punishing him for being mentally ill in contravention of Robinsonv. California, 370 U.S. 660 (1962). Finally, "any lengthy hospitalization, particu-larly where it is involuntary, may greatly increase the symptoms of mental illnessand make adjustment to society more difficult." 349 F. Supp. at 1087.

35. Comment, Civil Commitment of the Mentally Ill: Theories and Procedures,79 HAmv. L. REv. 1288, 1289 (1966).

36. Ennis, supra note 24, at 109.

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B. Survey of Required Procedures

(1) Notice and Opportwenity To Be Heard

In 1971, only twenty-six of the forty-two jurisdictions which had judi-cial hospitalization procedures required by statute that notice be given tothe alleged mentally ill individual of the commitment proceeding. Ninestates, including Wisconsin, allowed for the omission of notice where itwould be harmful to the patient. The remaining states allowed eithernotice to be served on the individual or someone on his behalf or hadno statute on the subject. In only twelve jurisdictions did the statute spec-ify the minimum notice permissible.3 7

Courts are apparently divided on whether notice and a hearing priorto hospitalization are required by due process. In In re Wellman,' 8 whichis followed by some courts, it was held that notice and a hearing are re-quired. In response to the assertion that notice of a commitment hearingshould not be required 'because it might be ineffective or futile, the Kan-sas Court of Appeals stated:

Notice and opportunity to be heard lie at the foundation of all judicialprocedure. They are fundamental principles of justice, which cannot beignored . . . . It will not do to say that it is useless to serve notice uponan insane person,-that it would avail nothing, because of his inability totake advantage of it. His sanity is the very thing to be tried.39

Where statutes have dispensed with all requirements of notice and theopportunity to be present at the hearing and have no provision for sub-stitute notice, they have been held invalid. 40 However, where the patienthas the unqualified right, either through statutory provisions for a post-hos-pitalization hearing or through habeas corpus, to contest the validity ofhis hospitalization in a judicial hearing, hospitalization without a hearinghas been held valid. 41 It may be noted, however, that in only seventeenstates does the patient have an unrestricted right to communicate withan attorney. 42 As a result, !the patient's ability to contest the validity ofhis hospitalization is, in those states which do not provide for unrestrictedcommunication with counsel following commitment without a hearing, se-verely hampered if not totally frustrated.

37. BRAx L AND ROCK, supra note 7, at 52. See id. at 72-79 (contains a listingof each individual state requirement).

38. 3 Kan. App. 100, 45 P. 726 (1896).39. Id. at 103, 45 P. at 727.40. See BRACKEL AND ROCK, supra note 7, at 52 n. 163 and citations therein.41. Id. at 52.42. Id. at 174-79 (contains a listing of the state provisions involved).

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(2) Right to Counsel

Forty-two jurisdictions provide that the alleged mentally ill individualhas the right to ;be represented by counsel. However, only twenty-fourprovide for the appointment of counsel in all commitment cases in whichthe person has none. In seven jurisdictions, such appointments may bemade -at the discretion of the court, and in five states appointment ismandatory upon the individual's request.48

In Argersinger v. Hamlin,"44 the Supreme Court extended the right toappointed counsel to all criminal proceedings in which an accused is sub-ject to a deprivation of liberty. Chief Justice Burger, concurring in theresult, noted that "cogent factors suggest the infirmities in any approachthat allows confinement for any period without the aid of counsel at trial;any deprivation of liberty is a serious matter. ' 45 In Gault the Courtnoted ,that the individual whose freedom is in jeopardy,

needs the assistance of counsel to cope with the problems of law, to makeskilled inquiry into the facts, to insist upon regularity of the proceedings,and to ascertain whether he has a defense and to prepare and submit it.46

In Heryford a right to counsel in proceedings to involuntarily commita mentally deficient individual was held to be a due process right, guar-anteed under the fourteenth amendment. In its opinion, the court notedthat

[w]here ... the state undertakes to act in parens patriae, it has the ines-capable duty to . . .see that a subject of an involuntary commitment pro-ceedings is afforded the opportunity to [have] the guiding hand of legalcounsel at every step of the proceedings, unless effectively waived by oneauthorized to act in his behalf.47

IV. Lessard v. Schmidt

A. Substantive Limitations on State Commitment Powers

Under § 51.02(5) of Wisconsin's Mental Health Act, the court mayorder a patient involuntarily committed if it is "satisfied that he is men-tally ill or infirm or deficient and that he is a proper subject for custodyand treatment . . . ." The plaintiffs in Lessard at-tacked this statute (1)on the grounds of vagueness and overbreadth, (2) for its allowance ofcommitment based upon a preponderance of the evidence, and (3) for

43. Id. at 54. See id. at 125-28 (contains a listing of each state's statute).44. 407 U.S. 25 (1972).45. Id. at 41.46. 387 U.S. 1, 36 (1967).47. 396 F.2d 393, 396 (10th Cir. 1968).

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its failure to allow for the concept of less drastic means. The court (1)avoided a finding of vagueness, (2) found that commitment based upona preponderance of the evidence is violative of due process of law, and(3) construed the statute so as to allow for the concept of less drasticmeans.

The court avoided a "void for vagueness" analysis of the Wisconsincommitment statute by employing the United States Supreme Court opin-ion, Humphrey v. Cady,4s which interpreted commitment under theWisconsin sex crimes statute in light of the Wisconsin statute which de-fines mental illness. 49 In dicta, the Court noted that implicit in the defi-nition is the requirement that a person's "potential for doing harm, tohimself or to others, is great enough to justify such a massive curtailmentof liberty." 50 From this, the court in Lessard implied a balancing test,stating that

[the Supreme Court's] approval of a requirement that the potential for do-ing harm be "great enough to justify such a massive curtailment of liberty"implies a balancing test in which the state must bear the burden of provingthat there is an extreme likelihood that if the person is not confined hewill do immediate harm to himself or others. 51

After noting the caution with which a finding based upon a predictionof future conduct must be viewed, the court refined the "extreme likeli-hood of immediate harm" test to require a finding of "a recent overt 'act,attempt or threat to do substantial harm to oneself or another. '52 Atleast one problem with such an approach will arise in attempting to define"substantial" and "harm."

Importantly, the court further refined its standard with respect to com-mitment based upon dangerousness to self. When dangerousness to selfis alleged as the ground upon which commitment is to be based

an overt attempt to substantially harm oneself cannot be the basis for com-mitment unless the person is found to be 1) mentally ill and 2) in im-mediate danger at the time of the hearing of doing further harm to one-self.

53

The court based this refinement upon two considerations. First, the justi-fications for commitment of an individual who, because of mental illness,is likely to harm others do not necessarily apply to a situation of potential

48. 405 U.S. 504 (1972).49. See note 5 supra and accompanying text.

50. 405 U.S. 504, 509 (1972).51. 349 F. Supp. at 1093 (emphasis added by court).52. Id.53. 349 F. Supp. at 1093 n.24 (emphasis added).

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harm to self. Second, dangerousness to self need not require a findingof mental illness such that the individual should be subject to the com-mitment power of the state. An attempted suicide should not, and thecourt holds that it cannot, in itself invoke state commitment powers.14

The need to find dangerousness to self or others, by one of the abovestandards, in addition to a finding of mental illness as a prerequisite tocommitment was further supported by comparing the mentally ill indi-vidual with the physically ill individual. With the exception of commu-nicable or contagious diseases, 55 persons in need of ,physical treatmentare -allowed the choice of whether or not to undergo hospitalization and-treatment. The reason for this is plain: the state simply has no interestin compulsory physical treatment of persons who do not pose a directthreat of contamination of others with their disease. The mental processwhich a physically ill individual undergoes in choosing whether or not toseek treatment is accorded great respect. Society has determined thatit is more desirable to allow a physically sick individual the choice ratherthan to compel -him to undergo treatment.5 6 The Lessard court extendedthis analysis to those with a sickness of the mind. That is, even thoughan individual is alleged to be mentally ill and even though it is thoughtthat treatment might be beneficial to his well being, the power of thestate to compel his confinement and treatment will be cut off "unless thestate can prove that the person is unable to make a decision about hos-pitalization because of the nature of his illness."' 57 It is clear that eventhough treatment may in itself be beneficial to the individual, the disad-vantages involved in institutional confinement (e.g., stigma, difficulties inobtaining release and in finding a job, etc.) may result in the conclusionthat the "sane" choice would be not to seek such treatment.

One drawback to this approach may be found in the use of the phrase"unable to make a decision." Does the state's evidence that an individualstands mute at a commitment proceeding prove inability to make a deci-sion? Does the conscious decision not to seek treatment in the face ofseveral doctors' reports that indicate that treatment is recommended evi-dence inability to make a decision because the decision is wholly unwisein view of professional reports? Such results were apparently unintendedby the opinion in Lessard, but it seems possible that a finding of inability

54. Id.55. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905): "Upon the

principle of self-defense, of paramount necessity, a community has the right to pro-tect itself against an epidemic of disease which threatens the safety of its members."

56. See Comment, supra note 35, at 1290.57. 349 F. Supp. at 1094.

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could be made upon a showing of (1) a failure to manifest ability, or(2) a decision which, when viewed in the context of professional opinion,exhibits unwise or irrational judgment.

A final reason for the requirement of a finding of dangerousness is thepresent state of medical knowledge on mental illness which, due to "un-avoidably ambiguous generalities" allows the diagnostician the ability "toshoehorn into the mentally diseased class almost any person he wishes,for whatever reason, to put there."' 8 So long as the state's power is beingemployed, the decision to commit must remain essentially a social andnot a medical one. To effectuate this end, the criteria for commitmentmust reflect (1) a standard which judges can apply without a virtuallycomplete reliance upon medical opinion, and (2) a sitandard which willconstitutionally justify the invocation of state power. A strict standardof dangerousness meets -these tests.

Lessard limits the state in the use of parens patriae as a source of com-mitment power because of its stated requirement that either dangerous-ness to self or others, or inability to make a decision concerning treatmentbe shown before treatment is justified. The non-dangerous mentally illindividual who retains the capacity to make a decision concerning treat-ment is thus placed beyond the state's commitment powers. Where, how-ever, dangerousness to self or others is shown (by the stated standard ap-plicable in each case), a showing of decisional capacity will not, underthe Lessard standard, defeat commitment. In addition, the strictness withwhich the court defines dangerousness in itself narrows the class of poten-tial committees.

The court next proceeded to determine the standard of proof whichis constitutionally required in a civil commitment case. While the Wis-consin statutes are silent as to the burden of proof which is permissible,59

the Wisconsin Supreme Court in In re Hogan60 has approved a jury in-struction allowing commitment based on a preponderance of the evidence.The court found this to be an impermissible standard in light of Woodbyv. Immigration and Naturalization Service.61 In Woodby, the UnitedStates Supreme Court disallowed a deportation based "upon no higherdegree of proof than applies in a negligence case."'6 2 Since commitmentinvolves greater deprivations of liberty than those involved in deportation,the court reasoned, it follows that commitment based upon a standard

58. Id., citing Livermore, supra note 33, at 80.59. Id.60. 232 Wis. 521, 287 N.W. 725 (1939).61. 385 U.S. 276 (1966).62. Id. at 285.

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impermissible in a deportation case is likewise impermissible in a commit-ment case.63

The Court in Woodby announced a standard of "clear, unequivocal,and convincing evidence. '64 The court in Lessard held that proof beyonda reasonable doubt of all facts necessary to show mental illness and dan-gerousness is the requisite standard of proof in a commitment hearing.615

The court based this holding primarily upon In re Winship,6" in whichthe United States Supreme Court held that proof beyond a reasonabledoubt was required to prove every fact necessary in a juvenile delin-quency proceeding. Since the same interest in liberty is involved in bothcommitment and juvenile delinquency proceedings, the court reasoned,the same "extreme caution in factfinding"67 should be required of thefactfinder in reaching his result. Furthermore, there is the added factorof a loss of civil rights upon a commitment which is not present in a delin-quency proceeding making the Lessard standard more compelling. 6

It is submitted, however, that the stated standard is unfontunately strict.Will it be possible for a trier of fact to find beyond a reasonable doubtthat "there is an extreme likelihood that if the person is not confined hewill do immediate 'harm to himself or others?" 69 The Lessard court notedits awareness of the problems attendant upon predictions of future con-duct, stating that commitments 'based upon such prediction must be"viewed with suspicion . ... "70 It stated a belief that commitment canbe justified in those cases in which "the proper 'burden of proof is satisfiedand dangerousness is based upon a finding of a recent overt act, attemptor threat to do substantial harm to oneself or another."'1 The court's con-cern with the protection of the due process rights of alleged mentally illindividuals will not be realized, however, if all that is required to findcommitment appropriate is a showing of some prior conduct. The betterapproach it is submitted, is that suggested in Tippelt v. Maryland7 2 in-

63. 349 F. Supp. at 1094.64. 385 U.S. at 286.65. 349 F. Supp. at 1095.66. 397 U.S. 358 (1970).67. Id. at 365.68. 349 F. Supp. at 1095. See also note 81 infra and accompanying text. In

In re Ballay, 482 F.2d 648 (D.C. Cir. 1973), a commitment based upon a "prepon-derance of the evidence" standard rather than a "beyond a reasonable doubt" stand-ard was held to constitute a deprivation of due process.

69. 349 F. Supp. at 1093.70. Id.71. Id.72. 436 F.2d 1153, 1159 (4th Cir. 1971) (Sobeloff, J., concurring in part and

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volving a defective delinquency proceeding, in which "clear, unequivocaland convincing evidence" was suggested as the appropriate standard asto the issue of dangerousness, and proof beyond a reasonable doubt wassuggested as the appropriate standard as to all objective facts in dispute. 73

By using different standards for distinct issues, dangerousness retains itsusefulness as a matter of prediction and allows the defendant a soundbasis upon which to contest such a finding. The Lessard standard wouldapparently authorize commitment upon a showing of some prior danger-ous conduct which would evidence present tendencies upon which a pre-diction as to future conduct could be based. It is true that dangerousnessis difficult if not impossible to accurately predict,74 but requiring that itbe shown beyond a reasonable doubt may encourage some factfindersto place unwarranted reliance upon prior conduct alone, -thereby severelylimiting its usefulness.

The third aspect of the court's substantive analysis involved the conceptof less drastic means. The principle was stated in Shelton v. Tucker75

thateven though the governmental purpose be legitimate and substantial, thatpurpose cannot be pursued by means that broadly stifle fundamental per-sonal liberties when the end can be more narrowly achieved. The breadthof legislative abridgement must be viewed in light of less drastic meansfor achieving the same basic purpose.76

In Lake v. Cameron,77 involving 'a habeas corpus proceeding, a burdenof exploration of possible alternatives to commitment was imposed uponthe state. The burden was imposed on the 'basis of a provision in theDistrict of Columbia Hospitalization of the Mentally Ill Act 78 which al-

dissenting in part), cert. dismissed as improvidently granted sub nora. Murel v. Bal-timore City Criminal Court, 407 U.S. 355 (1972).

73. In the words of Judge Sobeloff,[Als to the ultimate issue of the inmate's dangerousness, the 'beyond a rea-sonable doubt standard may in practical operation be too onerous. Afterall, the ultimate issue is not as in a criminal case whether an alleged actwas committed or event occurred, but the much more subjective issue ofthe individual's mental and emotional character. Such a subjective judg-ment cannot ordinarily attain the same "state of certitude" demanded incriminal cases. A number of commentators have suggested that a standardlying between the civil and the criminal may suffice where a determinationof "dangerousness" is at issue. Frequently advocated is a standard of"clear and convincing evidence." (citations omitted)

Id. at 1165.74. See Livermore, supra note 33, at 84 for an excellent discussion of the point.75. 364U.S. 479 (1960).76. Id. at 488.77. 364 F.2d 657 (D.C. Cir. 1966) [hereinafter cited as Lake].78. D.C. CODE §§ 21-501 to 21-591 (Supp. V 1966).

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lowed the court, after a finding that the individual was subject to commit-ment, to order "any other alternative course of treatment which the courtbelieves will be in the best interests of the person or of the public. '79

In Lessard, a burden of proof of alternatives to commitment was im-posed upon the state (whereas Lake imposed a burden of exploration)and this burden was imposed without the benefit of a statute as in Lake.Specifically,

the person recommending full-time involuntary hospitalization must bearthe burden of proving (1) what alternatives are available; (2) what alter-natives were investigated; and (3) why the investigated alternatives werenot deemed suitable. 80

Thus, even though the standards for commitment are satisfied, full-timeinvoluntary hospitalization may not be ordered unless all less drasticmeans of achieving 'the same objective have been investigated and foundnot suitable in the individual case.

B. Procedural Safeguards Required in the Commitment Process.

The basic principle upon which the court based its holdings with ref-erence to procedural rights was that it is the seriousness of the deprivationof liberty and the consequences which follow a finding of committablemental illness which require strict adherence -to the stringent proceduralrequirements which apply to other proceedings in which individual libertyis in jeopardy. The court noted several reasons for dispelling the notionthat parens patriae should justify less stringent procedural rights in a civilcommitment proceeding than are required in a criminal trial. Among thereasons cited were loss of numerous civil rights, stigma which accompaniesrelease, and statistics which indicate that a person committed to a mentalinstitution has a much greater chance of dying than if left at large. 8' Thecourt noted that

the interests in avoiding civil commitment are at least as high as thoseof persons accused of criminal offenses. The resulting burden on the state

79. D.C. CODE § 21-545(b) (Supp. V 1966). It may also be noted that in Statev. Sanchez, 80 N.M. 438, 457 P.2d 370 (1969), the Supreme Court of New Mex-ico, citing with approval the dissent in Lake, rejected the contention of an involun-tarily committed individual that hospitalization imposed a restraint much broaderthan was necessary to protect him from injury to himself. Absent a statutory dutyto explore alternatives, the court held, no duty existed. Id. at 373.

80. 349 F. Supp. at 1096.81. Id. at 1088-90, For tables listing the legal effect of an adjudication of men-

tal illness in the several states, see BRAKEL AND RocK, supra note 7, at 240 (mar-riage), 244 (divorce), 248 (adoption), 273 (legal competency), 315 (personal andproperty rights), 322 (testamentary capacity), 326 (engagement in occupations),and 333 (voting, holding office, jury service and driver's license).

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to justify civil commitment must be correspondingly high.8 2

The issue of procedural due process requirements was raised by plain-tiffs in that part of the complaint which alleged that the Wisconsin proce-dure for civil commitment denied due process by (1) permitting invol-untary detention for a possible 145 days without a hearing on the neces-sity of the detention; (2) failing to make notice of hearings mandatory;(3) failing to give adequate and timely notice where notice is given; (4)failing to provide a mandatory notice of right to trial by jury; (5) failingto give right to or appointment of counsel at a meaningful time; (6) fail-ing to permit counsel to be present at psychiatric interviews; (7) failingto provide for the exclusion of hearsay evidence and for the privilegeagainst self-incrimination; and (8) failing to provide access to an inde-pendent psychiatric examination by a physician of the allegedly mentallyill person's choice. s3 With the exception of the sixth 4 and eighth allega-tion above,85 the court in Lessard agreed that these various failures ofthe Wisconsin civil commitment statute did deny plaintiffs due processand the court declared each a prerequisite to a valid commitment as amatter of due process of law.

The requirement that an individual subject to oivil commitment begiven prior notice and an opportunity to be heard prior to a valid commit-ment was established in Lessard with principal reliance upon Boddie v.Connecticut"" and Gault. As a result of its analysis, five sections of sheWisconsin civil commitment statute8 7 were held unconstitutional on theirface ,and as applied to Miss Lessard.

Boddie established the proposition that an individual must "be givenan opportunity for a hearing before 'he is deprived of any significant prop-erty interest . ... 88 Since an individual's interest in liberty is morecompelling than his interest in property rights, the court reasoned that"no significant deprivation of liberty can be justified without a prior hear-ing on the necessity of the detention."89 Within this analysis, however,

82. 349 F. Supp. at 1090.83. Id. at 1082.84. See text accompanying note 97 infra for the court's suggested alternatives.85. Since an offer of independent psychiatric examination was refused by plain-

tiff's counsel, the court did not rule on the issue. 349 F. Supp. at 1082 n.2.86. 401 U.S. 371 (1971).87. Wis. STAT. ANN. §§ 51.02(1); 51.03; and 51.04(1) to 51.04(3) (Supp.

1969).88. 401 U.S. at 379 (emphasis added).89. 349 F. Supp. at 1091. See also Goldberg v. Kelly, 397 U.S. 254 (1970),

in which the Supreme Court held that due process requires an evidentiary hearingprior to the termination of welfare benefits.

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the court did allow for the emergency detention of violent individualswithout a prior hearing, but only until such time as a probable cause hear-ing on the necessity of the detention can .be held. The court noted thatthe maximum period during which an individual can be held pursuantto emergency procedures without a probable cause hearing is 48 hoursand that due process is violated where there is no meaningful opportunityto be heard at the preliminary hearing due either to medication or lackof counsel. 90

The full hearing on the necessity for detention is requiredas soon after detention as possible within the limits made necessary in or-der for psychiatrists to make their examination and reports and for the pa-tient to be able to prepare any defense.91

While the court stated its "belief" that "from ten to fourteen days shouldbe the maximum period [during] which an individual can be detainedwithout a full hearing, '92 it appears -to have allowed ,a possible escapefrom this requirement. The court stated that if full examination is notaccomplished during this period due to inadequate personnel, "it is diffi-cult to see how continued detention can be said 'to be beneficial to thepatient. '9 3 It appears that this is unfortunate dictum. If benefit to thepatient is the key to the required period for a hearing, this invites returnto the parens patriae model, since hospital authorities could argue thateven though there has been inadequate personnel to conduct the requiredexaminations, there are sufficient personnel to provide treatment to theindividual. This argument may be seen as a viable one in view of thevariety of psychiatric theories as to proper methods of treatment and inview of the 'belief expressed by several judges that the adequacy of treat-ment issue is not within the court's competence to adjudicate.94 A delayin a full hearing under such an argument should be unjustified in lightof Boddie and in light of this court's attack upon the parens patriaemodel. It remains to be seen whether such an argument "will be success-ful to delay a full hearing on the necessity of detention.

In order for the notice of the hearing to comply with the requirementsof due process, it

"must be given sufficiently in advance of scheduled court proceedings sothat reasonable opportunity to prepare will be afforded," and it must setforth the basis for detention with particularity. 95

90. 349 F. Supp. at 1091-92.91. Id. at 1092.

92. Id.93. Id.94. See, e.g., Dobson v. Cameron, 383 F.2d 519 (D.C. Cir. 1967).

95. 349 F. Supp. at 1092, quoting In re Gault, 387 U.S. 1, 33 (1967).

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The court held that an individual subject to commitment is entitled toassistance of counsel as soon after the proceedings have begun as is rea-sonably feasible, and this includes the right to appointed counsel wherethe individual is indigent. Counsel must be present at the preliminaryhearing on detention, must have sufficient time to prepare initial defenses,and must have access -to all reports which will be introduced at the com-mitment hearing.96

In balancing the right to effective aid of counsel with the state's inter-ests in meaningful consultation, the court decided that counsel shall notbe required in the psychiatric interview. Rather, the state is allowed toshow that means other than attendance of counsel at the interview, suchas recording and making available to counsel the written results of theinterview, "will prove as effective in maintaining the individual's rightswith less disruption of the traditional psychiatrist-patient relationship." 97

Competing considerations also attended the decision as to whether aprivilege of self-incrimination should apply to the commitment process.On one hand, the statements of an alleged mentally ill person may subjecthim to involuntary loss of freedom. On the other hand, any realistic pos-sibilities for treatment of an individual who is subject to commitmentmay be lost if counsel is allowed to instruct his client not to answer ques-tions put to him by an examining psychiatrist. The court reconciledthese competing interests in favor of the privilege with reliance upon theSupreme Court's rationale in Gault:

It is true that the statement of the privilege in. the Fifth Amendmentis that no person "shall be compelled in any criminal case to be a wit-ness against himself." However, it is also clear that the availability ofthe privilege does not turn upon the type of proceeding in which its protec-tion is invoked, but upon the nature of the statement or admission andthe exposure which it invites . . . . [Ojur Constitution guarantees that noperson shall be 'compelled' to be a witness against himself when he isthreatened wth a deprivation of liberty-a command which this Court hasbroadly applied and generously implemented .... 98

The implementation of the privilege requires that the subject be in-formed by counsel that he need not speak to the examining psychiatristand that statements made may be used to effectuate commitment. Com-mitment may be valid, however, where the individual did not have"knowledge" that he was under no obligation to speak if his failure tohave knowledge was due to mental illness.99 A subsequent finding of

96. 349 F. Supp. at 1097-1100.97. Id. at 1100.98. Id. at 1100-01, quoting In re Gault, 387 U.S. 1, 49-50 (1967).99. 349 F. Supp. at 1101. The court noted that if an individual's rights are ex-

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mental illness based upon such statements will not be held to offend dueprocess. The court provided a rule, however, which forbids commitmentbased upon statements made to a psychiatrist by an alleged mentally illindividual unless voluntarily given after notice of possible conse-quences1 00

Finally, the court provided for the exclusion of hearsay evidence incommitment proceedings to the same extent that it is excluded in trialsgenerally. The court reasoned that "[t]he weaknesses of hearsay evi-dence are the same, whatever the nature of the proceeding.'' i In thesame way that the civil-criminal distinction was found an unsatisfactorybasis on which to base relaxed due process standards for civil commit-ment, it was considered unsatisfactory in the specific context of hearsayevidence. The court reiterated its basic position that the seriousness ofthe deprivation of liberty and ,the consequences which follow an adjudica-tion of mental illness require no relaxation in the protections afforded inother proceedings in which individual liberty is at stake.10 2

V. CONCLUSION

Lessard v. Schmidt is a case of great significance to those concernedwith the protection of the rights of persons subject to civil commitment.It characterized plaintiffs' claims as an attack upon the parens patriaemodel and the abuses upon individual liberty which have resulted fromit. Su bstantively, it defines and limits the state in the exercise of parenspatriae power over mentally ill persons; it requires proof beyond a rea-sonable doubt of all facts required to be shown for commitment; and itrequires implementation of the concept of less drastic means in the com-mitment process. Procedurally, it requires notice and an opportunity tobe heard prior to commitment; affords a right to counsel; allows a privi-lege against self-incrimination; and provides for the exclusion of hearsayevidence in commitment proceedings.

As may be seen from the discussion herein, there has been a definitetrend of case law directed towards the expansion of protections affordedsociety's forgotten members. As may also be seen, this trend is notgenerally prevalent and the protections afforded vary widely from juris-diction to jurisdiction.

plained to him in simple terms, he may be presumed to have "knowledge" sincethere is a presumption of competency in a commitment proceeding. Id. at 1101n.33.

100. Id. at 1102.101. Id. at 1103.102. Id. at 1102-03.

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19741 CASE NOTES 1297

The time is ripe for Supreme Court action in the mental health field.The defendants in Lessard have filed a notice of appeal to the SupremeCourt. 0

3 It is hoped that the Court will respond to the need for a clearand uniform statement of rights to which persons subject to commitmentnationally are entitled.

Arnold H. Landis

103. Notice of appeal filed, 42 U.S.L.W. 3201 (U.S. Sept. 28, 1973) (No. 568).On January 14, 1974, the Supreme Court, Mr. Justice Douglas dissenting, entereda per curiam order which, after noting that the judgment entered by the Lessardcourt was sufficient to invoke the Supreme Court's appellate jurisdiction, vacated thejudgment for lack of specificity with respect to the injunctive relief granted and re-manded the case to the District Court for clarification of its order. Schmidt v.Lessard, 94 S. Ct. 713 (1974).